Citation Nr: 1721925 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 13-05 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Evaluation to a disability rating in excess of 30 percent for Posttraumatic Stress Disorder (PTSD) prior to April 26, 2016. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD prior to April 26, 2016. 3. Entitlement to service connection for traumatic brain injury (TBI) residuals. ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a January 2017 rating decision, the RO increased the disability rating for the Veteran's service-connected PTSD to 100 percent disabling, effective April 26, 2016. As the increase did not represent a total grant of the benefits sought on appeal, the claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue currently on appeal is evaluation to a disability rating in excess of 30 percent for PTSD prior to April 26, 2016, and it has been characterized as such on the title page. The issue of entitlement to a TDIU due to service-connected PTSD has also been raised by the Veteran during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability"). However, as the Veteran is in receipt of a 100 percent schedular rating from April 26, 2016, the issue of entitlement to a TDIU is moot from that date, forward. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008); DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (Mar. 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999)). Thus, the issue currently on appeal is entitlement to a TDIU due to service-connected PTSD prior to April 26, 2016, and it has been characterized as such on the title page. The issue of entitlement to service connection for TBI residuals is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's PTSD resulted in functional limitation most closely approximating occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's inability to obtain or maintain substantially gainful employment is due to conditions unrelated to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for a TDIU prior to April 26, 2016 have not been met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating In the January 2017 rating decision, the RO awarded a 100 percent disability rating for PTSD, effective April 26, 2016. As the award of a 100 percent rating represents a total grant of the benefit sought on appeal, effective April 26, 2016, the remaining issue before the board is whether the Veteran is entitled to an evaluation in excess of 30 percent for PTSD prior to April 26, 2016. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.S. § 1155 (LexisNexis 2017); 38 C.F.R. § 4.1 (2016). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C.S. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2016). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2016). While a Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. By way of history, the Veteran filed a claim for an increased evaluation for his service-connected PTSD, rated under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, in June 2014. In an October 2014 rating decision, the AOJ continued the 30 percent rating then in effect. The Veteran subsequently perfected an appeal of that decision. In August 2016, the Board remanded the claim for further evidentiary development. In a January 2017 rating decision, the RO increased the disability rating to 100 percent disabling, effective April 26, 2016. The relevant rating criteria for PTSD are as follows. A 30 percent rating is assigned for occupational and social impairment with decrease in work efficiency and intermittent period of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a) (2016). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 indicates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Turning to the medical evidence of record, April 2014 VA treatment records documented the results of a depression screening. The VA clinician considered whether the Veteran exhibited "[l]ittle interest or pleasure in doing things" and whether he felt down, depressed, or hopeless. Below each question, the VA clinician noted "[n]ot at all." Ultimately, the screen tested negative for depression. In September 2014, the Veteran was afforded a VA psychiatric examination. During the examination, the Veteran endorsed symptoms of chronic sleep disturbance. The Veteran characterized his current marriage of twenty-six years as "good," despite admitting to some marital tension. The Veteran reported that he remains in close contact with family and friends. Also, the examiner noted that the Veteran exhibited "very mild" symptoms of PTSD during the examination. In addition, the examiner stated that there had not been "any significant changes" to the Veteran's symptoms or level of social and occupational functioning since the February 2011 VA examination. On April 26, 2016, Dr. Heather Henderson-Galligan interviewed the Veteran and completed a Disability Benefit Questionnaire. During the interview, the Veteran endorsed symptoms of depressed mood, anxiety, near-panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances and inability to establish and maintain effective relationships. The examiner found that the Veteran's PTSD resulted in total occupational and social impairment. She observed the Veteran to have "great ongoing difficulty with his symptom pattern." The examiner further noted that the "severity of his symptom complex relates back to his original date of 06/06/14." There is no further relevant evidence related to the Veteran's PTSD. After review of the evidence of record, the Board finds that the severity of the symptoms and disability picture prior to April 26, 2016 does not warrant a disability rating in excess of 30 percent disabling. In this regard, the record lacks evidence of symptoms that result in occupational and social impairment with reduced reliability and productivity. First, there is no evidence demonstrating that prior to April 26, 2016, the Veteran's PTSD symptoms negatively impacted his marriage. The marital "tension" that the Veteran described during the September 2014 examination involved factors other than his PTSD symptoms, such as, children from a previous marriage. Also, the Veteran described the state of his marriage as "good." Second, although the Veteran reported being "more sociable prior to his Vietnam experience," he also indicated at the examination that he regularly socialized with friends and family. Third, the April 2014 VA treatment records documented the depression screening results as negative. Lastly, the September 2014 VA examination did not attribute the Veteran's retirement in 2010 to his PTSD disability. Therefore, the medical evidence dated prior to April 26, 2016 neither demonstrates a difficulty in maintaining social relationships as a result of his PTSD symptoms, nor shows that his PTSD symptoms created a difficulty to maintain effective work relationships. The Board acknowledges the Disability Benefits Questionnaire completed by Dr. Henderson-Galligan, opining that the Veteran's symptom complex dates back to June 2014. However, the September 2014 VA examiner found the Veteran's PTSD symptoms to be "very mild." In fact, the examiner remarked that there had not been any significant changes to the Veteran's symptoms since the last VA examination in February 2011. The record lacks any independent medical evidence to support Dr. Henderson-Galligan's opinion that the symptoms reported during the April 2016 assessment were present prior to April 26, 2016. Therefore, the Board finds that Dr. Henderson-Galligan retrospective opinion offers little probative value when considered in light of contemporaneous medical evidence. The limited medical evidence of record confines the Board's ability to develop a detailed disability picture of the Veteran's PTSD throughout the entire claim period. See generally Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Veteran was scheduled for a VA examination well before being interviewed by Dr. Henderson-Galligan. However, he did not report for that examination, nor has he provided "good cause" for failing to do so. See 38 C.F.R. § 3.655. In short, the Board finds that the Veteran's PTSD symptoms are comparable indicators of the type of occupational and social impairment contemplated in the criteria provided for a 30 percent rating under the General Rating Formula, but no more. See Mauerhan, 16 Vet. App. at 42-43. In reaching this conclusion, the Board remains sympathetic to the Veteran and does not question the sincerity of his belief that his PTSD symptoms are more severe than currently evaluated. However, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although he believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation in excess of 30 percent, as explained and discussed above. As the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable, and the claim must be denied. 38 U.S.C.S. § 5107(b). II. TDIU VA has a duty to maximize benefits. See AB, 6 Vet. App. at 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation); 38 C.F.R. § 3.103(a) (2008) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). In Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. 22 Vet. App. 447 (2009). A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C.S. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Here, the Veteran does not meet the schedular requirements for a TDIU prior to April 26, 2016. Prior to April 26, 2016, the Veteran was service connected for PTSD (30 percent disabling), tinnitus (10 percent disabling, effective June 6, 2014), scalp wound with residual scar (10 percent disabling, effective June 6, 2014), left foot shrapnel wound with residual scar (noncompensable), and right knee shrapnel wound with residual scar (noncompensable). Because none of the disabilities are rated 40 percent disabling or higher, the Veteran did not meet the criteria for TDIU on a schedular basis prior to April 26, 2016. See 38 C.F.R. § 4.16. The Board also finds that referral for consideration of a TDIU on an extraschedular basis for the period prior to April 26, 2016 is not warranted, as the most probative evidence does not show that the Veteran is precluded from obtaining or maintaining substantially gainful employment due to his PTSD or other service-connected disabilities. At the September 2014 VA examination, the Veteran reported working for a phone company for about twenty-five years, and then working at a consulting company for another twelve years. The Veteran retired in 2010. The VA examiner found that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. However, the September 2014 VA examiner did not indicate that the Veteran's PTSD precluded him from obtaining or maintaining employment. The record lacks any other evidence during the appeal period to support a finding that the Veteran's service-connected disabilities prevented him from obtaining or maintaining gainful employment. Significantly, the Veteran explained on separate occasions that he retired due to his nonservice-connected TBI residuals, to include a left temporal lobe cyst. Specifically, in June 2010, the Veteran stated "I feel I can no longer do an effective job, therefore I decided to retire and quit work way before I wanted to before my memory loss affected my ability to do an efficient job." In a November 2011 statement, the Veteran reported that his memory loss worsened after he underwent a craniotomy in June 2009. The Veteran stated that he had to "quit working for fear the memory loss caused by the traumatic brain injury would affect my ability to perform my job efficiently." In summary, the Board finds that the preponderance of the probative evidence indicates the Veteran's service-connected disabilities does not render him incapable of performing the physical and mental acts required by employment when considered with his education and prior work history. Accordingly, the criteria for TDIU are not met, referral for extraschedular consideration is not warranted, and the claim is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. ORDER Prior to April 26, 2016, a rating in excess of 30 percent for PTSD is denied. A total disability rating based on individual unemployability due to service-connected disabilities is denied. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's service connection claim. The Veteran contends that his TBI residuals are related to a shrapnel injury to his left scalp during military service. Medical treatment records documented a history of a seizure disorder, episodes of amnesia, and increased difficulty with word finding. Following a craniotomy, November 2008 private treatment records revealed a "brain, left temporal lobe, biopsy-cortex and white matter with gliosis, and hemosiderin with features suggestive of an arachnoid cyst." The Veteran maintains that the brain lesion is a result or residual of an in-service TBI. As noted in the Board's April 2016 remand, the Veteran's claims file includes several differing medical opinions as to the Veteran's diagnosis and etiology of the lesion. In April 2016, the Board remanded the Veteran's claim to schedule the Veteran for another "examination to secure an advisory medical opinion that reconciles/resolves the conflict in the evidence, and clarifies the diagnosed disability entities . . . ." The Board requested that a neurosurgeon examine the Veteran. Following the Board's April 2016 decision, the Veteran was scheduled for a VA examination on December 8, 2016. However, the record reflects that the Veteran failed to report to the examination. While the Veteran has not offered an explanation for missing the examination, the Board acknowledges that at the time of the scheduled examination the Veteran received a 100 percent disability rating for his PTSD. See January 2017 Rating Decision. As the Board has still not been able to obtain a medical opinion clarifying the Veteran's current TBI diagnosis and its possible etiology to service, the Board finds that the Veteran should be afforded the opportunity for another medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, a new examination should be scheduled; however, if the Veteran fails to report to the examination, a medical opinion based on case file review should be prepared. Updated VA treatment records should also be requested. 38 U.S.C.S. § 5103A(c) (LexisNexis 2017); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Update the file with any VA treatment records relevant to the Veteran's claim dated from January 2009 to the present. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination to determine whether the Veteran has any current residuals of a TBI that had its clinical onset during his period of active service or is otherwise related to service. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to instructions below. However, if the Veteran fails to report to the examination, proceed to prepare a medical opinon based on case file review and respond to the following: (a) Please detail all reported symptoms of TBI residuals. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all symptoms. (b) Please identify diagnoses related to the Veteran's reported symptoms of TBI residuals. (c) For each diagnosis of TBI residuals, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in service. In issuing the requested opinions, please specifically discuss the significance of the following: * February 1968 Report of Medical History that documented multiple fragment wounds on the left and right side of the head. * May 1987 letter from Dr. Stanley van den Noort. * May 1990 private treatment records that documented diagnoses of partial seizures and temporal lobe cystic lesion. * November 2008 final pathologic diagnosis of the Veteran's left temporal cyst. * January 2009 letter from Dr. Conrad T.E. Pappas, stating that "[t]he results of your surgery would indicate a past injury could have caused the left temporal cyst. At this point in your life however, one cannot be one hundred percent certain." * June 2009 VA examination, concluding that "[i]t is the opinion of this examiner that this patient does not suffer from symptoms of a traumatic brain injury." * June 2009 VA examination that noted "[i]t would be conjecture at best to attribute his front temporal mass to a shrapnel injury that did not cause a skull fracture. Pathology reports matter taken out of the brain was cortex and white matter with gliosis, suggestive of an arachnoid cyst which is most likely a congenital condition." * The Veteran's June 2010 report that his memory loss is getting worse. * Dr. Conrad T.E. Pappas's December 2010 opinion that the cyst could be due to an old injury. * Dr. Homer Skaggs's May 2016 examination and opinion. There, Dr. Skaggs opined that "it is at least as likely as not that the Veteran's left temporoparietal cyst with consequent TBI and residual effects are the result of concussive blasts and shrapnel damage to the left temporoparietal region of the head that were sustained during the Veteran's time in military service." In determining whether the Veteran meets the criteria for a current diagnosis related to TBI residuals, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing (here, January 2009) meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. For instance, if the brain lesion is determined to be unrelated to the Veteran's in-service head injury, the examiner should explain the reasons behind this determination, with citation to relevant medical literature, if appropriate. A complete rationale for the opinion rendered must be provided. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. 3. After the above development has been completed, readjudicate the claim for entitlement to service connection for TBI residuals. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.S. §§ 5109B, 7112 (LexisNexis 2017). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs